Robert A. Muir

Supplementary reasons regarding costs and a timetable following the dismissal of the plaintiff's motion to strike portions of the defendant's statement of defence.

The court ordered no costs for the motion, finding that while the defendant was successful, the plaintiff's motion was not unreasonable given the poor drafting of the statement of defence.

The court also set a timetable limited to the defendant's intended motion for security for costs.

Following the dismissal of the action against it, the defendant Covanta sought partial indemnity costs of $62,323.43 plus incidental costs of $312,887.85.

The plaintiff argued the amounts were excessive and that incidental costs were effectively a claim for damages.

The court agreed with the plaintiff, finding the incidental costs inappropriate for a summary costs motion and the legal fees excessive compared to the plaintiff's own costs outline.

The court fixed costs at $40,000 payable by the plaintiff to Covanta.

The plaintiff brought a motion to restore her personal injury action to the trial list after it was struck for failure to file a trial certification form.

The court found that the plaintiff provided an acceptable explanation for the delay, which included a change of counsel and the defendants' failure to respond to the certification form.

The court also found no non-compensable prejudice to the defendants, as the action was largely ready for trial and the defendants had fully investigated the claim.

The motion was granted and the action was restored to the trial list.

The moving party, an owner/contractor on a construction project, brought a motion under section 47(1) of the Construction Lien Act to dismiss the plaintiff's action against it.

The plaintiff's construction lien had previously been vacated by the posting of security by the general contractor.

The court held that once a lien is vacated by the posting of security, the owner is no longer a proper party to the lien action as there is no privity of contract.

Furthermore, the court applied binding appellate authority to hold that claims for unjust enrichment and quantum meruit cannot be joined in a lien action under section 55(1) of the Act.

The motion was granted and the action against the moving party was dismissed.

The plaintiff in a defamation action brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike various paragraphs of the defendant's fresh as amended statement of defence.

The plaintiff argued the paragraphs did not comply with the rules of pleading and were irrelevant, repetitive, and improper.

The court dismissed the motion, finding that the impugned paragraphs generally complied with the rules of pleading and that a pleading must be read generously and not subjected to a standard of perfection.

The plaintiff in a simplified procedure product liability action sought further and better affidavits of documents from the defendants regarding a failed flexible water supply connector.

The plaintiff requested 125,000 pages of documents and expert reports that the defendants had previously produced in a related US class action.

The court ordered the production of the 125,000 pages of documents, finding them relevant and necessary for the plaintiff to prove its case, but denied the request for expert reports based on proportionality concerns.

The defendants brought a preliminary motion to strike various paragraphs of the plaintiff's supporting affidavit filed in connection with a motion for answers to discovery refusals.

Applying the principles from Chopik v. Mitsubishi Paper Mills Ltd., the Master struck paragraphs containing the law clerk's opinion and interpretation of evidence, while allowing paragraphs that merely attached or quoted public documents.

Paragraphs containing argument were not struck but were directed to be considered as part of the plaintiff's argument rather than evidence.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging insufficient assets in Ontario to cover potential costs.

The court reviewed the two-part test for security for costs, which places the initial onus on the defendant to demonstrate a good reason to believe the plaintiff has insufficient assets.

The court found that the defendant failed to meet this initial onus, as their evidence was based on speculation rather than concrete indicia of financial difficulty.

The plaintiff, an operating business with ongoing investments and a subordinated major liability, provided sufficient evidence of its financial stability and ability to meet a costs order.

The motion was dismissed.

The defendant brought an urgent motion to set aside a noting in default and default judgment related to a residential second mortgage loan.

Although the court accepted that the defendant moved promptly and had a plausible excuse for the default, the motion was dismissed because the defendant failed to demonstrate an arguable defence on the merits, as the mortgage was clearly in default.

The court also amended the title of proceedings to correct the plaintiff's name and capped the plaintiff's costs at $5,000 due to improper unilateral changes to court documents.

The defendant, Toronto Hydro Corporation, brought a motion to dismiss or stay the action due to the plaintiffs' failure to pay approximately $45,000 in interlocutory costs orders.

The court, balancing the interests of allowing a litigant their day in court and enforcing court orders, granted the plaintiffs a final opportunity to comply with the outstanding costs orders.

The action was stayed, and the plaintiffs were ordered to pay the costs in six equal monthly installments, with leave for the defendant to seek dismissal if payments default.

The defendants were successful on a motion declaring the plaintiff's construction lien expired and sought substantial indemnity costs of $5,930.74.

The court rejected the request for elevated costs, finding no reprehensible conduct by the plaintiff.

The court also noted the defendants improperly brought the initial motion without notice and failed to disclose a relevant consent timetable order.

The court fixed costs at $1,695.00, as suggested by the plaintiff, finding it fair and reasonable.

The plaintiff brought a motion seeking answers to questions refused on discovery in a wrongful competition claim.

The court addressed eight remaining disputed questions after the defendants agreed to answer five.

The motion concerned the production of electronic documents, inspection of a personal computer, legal advice, other business operations, alteration of ballistics reports, and production of corporate financial records.

The court dismissed requests for electronic document production and computer inspection due to lack of evidence of missing documents, and questions about unrelated legal advice and other businesses as speculative.

However, the court ordered answers regarding the alteration of ballistics reports and the production of corporate financial records, finding them relevant and proportional to the claims for accounting and damages.

The plaintiff brought a motion seeking production of damages documents, specifically client engagement communications, client-by-client contribution margins, and underlying documents for client sales summaries.

The defendants brought a cross-motion seeking a further affidavit of documents, answers to outstanding undertakings, and answers to questions refused on discovery.

The court granted the plaintiff's requests for client engagement communications and underlying sales summary documents, but denied the request for client-by-client contribution margins due to proportionality.

For the defendants' motion, the court ordered clarification on undertakings and answers to numerous refused discovery questions concerning employee departures, lost clients, employee benefits, redacted documents, customer reports, and profit and loss statements.

The defendants' request for a further affidavit of documents was denied based on proportionality.

This decision addresses costs following three motions, where the plaintiff was largely successful in obtaining an extension to file a statement of claim despite breaching a peremptory order.

The plaintiff sought costs, but the court denied them.

The denial was based on the plaintiff having received a substantial indulgence from the court, the necessity of much of the evidence and argument regardless of the defendants' position, and the plaintiff's failure as a self-represented litigant to provide evidence of lost income.

The defendants brought a motion seeking a declaration that the plaintiff's construction lien had expired, an order discharging the lien, and the return of cash security.

The plaintiff opposed, arguing that a consent timetable order extended the mandatory two-year period under section 37 of the Construction Lien Act (CLA) for setting the action down for trial.

The court found that sections 37 and 46 of the CLA are mandatory and cannot be extended by party agreement or consent order, citing binding appellate authority.

The court also found no evidence of an agreement to extend the time limit.

Consequently, the lien was declared expired, discharged, and the cash security ordered returned, while the action continued as an ordinary breach of contract claim.

This decision addresses the costs of a motion brought by the plaintiff, Innocenzo Lippa, to set aside an administrative dismissal for delay, which was ultimately dismissed.

The plaintiff proposed $10,000 in partial indemnity costs, while the defendant, Advanced Software Concepts Inc., sought $64,000 in substantial indemnity or $45,000 in partial indemnity.

The court declined to award elevated costs, finding no reprehensible conduct by the plaintiff.

However, it determined that a significant partial indemnity award was justified given the importance of the motion to the defendant and the work involved.

The court found the defendant's requested costs excessive, particularly for factum and argument preparation, and applied a 50% reduction.

This supplementary endorsement addresses the costs of a failed mediation and an urgent motion brought by the plaintiff to compel a representative's attendance at discovery.

The court declined to award costs for the mediation, finding no evidence of bad faith despite the defendant's alleged reluctance to engage in settlement discussions.

For the motion, where the plaintiff was largely successful in securing the discovery order, the court awarded partial indemnity costs to the plaintiff, fixed at $6,300.00, after a one-third reduction for lack of complete success (specifically, the failed mediation costs).

The decision reiterates that elevated costs require a clear finding of reprehensible conduct, which was not present.

The defendants/plaintiffs by counterclaim, Canopy Growth Corporation and Canopy Hemp Corporation ("Canopy"), brought a motion seeking preliminary relief in relation to pending summary judgment motions.

Canopy sought an order adjourning the summary judgment motions, establishing a discovery plan, ordering specific document production, and examinations of non-parties.

The plaintiff and defendants by counterclaim opposed the motion.

The court, applying the principles from Hryniak v. Mauldin, found that the summary judgment motions were not simple questions of law and contractual interpretation and that Canopy required some evidence to respond fairly.

The court ordered specific document production from the defendants by counterclaim and examinations of non-parties Vic Neufeld and John Cervini under Rule 39.03, but declined to order a full discovery plan or affidavits of documents.

The court also clarified its lack of jurisdiction to adjourn a judge's summary judgment motion or vary a judge's timetable.

The plaintiff brought an urgent motion seeking an order to compel Aziz Pirani, a current employee of the defendant corporation, to attend an examination for discovery as the defendant's representative.

The urgency arose from Mr. Pirani's unclear impending departure from the defendant's employment, which would alter the plaintiff's prima facie right to choose the witness.

The defendant opposed the motion, arguing lack of urgency and the inappropriateness of examining a departing employee.

The court found the matter urgent and granted the plaintiff's motion, affirming the plaintiff's right to select the corporate representative for discovery when the individual remains an employee and their departure date is uncertain.

The plaintiff's production motion was dismissed without prejudice, conditional on exhausting remedies under the Municipal Freedom of Information and Protection of Privacy Act (MFIPP).

The plaintiff re-brought the motion without exhausting these appeal rights.

The court dismissed the motion again, without prejudice, and awarded partial indemnity costs of $1,000.00 to the defendant, finding the requested costs of $2,900.00 excessive given the motion's simplicity and prior arguments on similar issues.